Citation Nr: 9812312
Decision Date: 10/16/98 Archive Date: 02/02/99
DOCKET NO. 94-32 683 DATE OCT 16, 1998
On appeal from the Department of Veterans Affairs Regional Office
in Oakland, California
THE ISSUE
Entitlement to service connection for a chronic acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Norman R. Zamboni, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1969 to July 1970.
This matter comes before the Board of Veterans' Appeals (Board) on
appeal of a July 1993 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) located in Oakland, California,
which denied the veteran's claim for service connection for a
chronic acquired psychiatric disorder.
In December 1996, the Board remanded this case to the RO to
determine whether or not the veteran had filed a timely substantive
appeal with regard to this issue. In February 1998, the RO
determined that the veteran's substantive appeal was timely, and
the case is now ready for further appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends his current psychiatric disorder has its onset
while he was in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 3 8 U. S.C.A. 7104
(West 1991 & Supp. 1997), has reviewed and considered all of the
evidence and material of record in the veteran's claims file. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that
the appellant has not met the initial burden of submitting evidence
sufficient to justify a belief by a fair and impartial individual
that his claim for service connection for a chronic acquired
psychiatric disorder is plausible.
FINDING OF FACT
The evidence does not tend to show that the veteran has a chronic
acquired psychiatric disorder that is related to service.
CONCLUSION OF LAW
The claim of entitlement to service connection for a chronic
acquired psychiatric disorder is not well grounded. 38 U.S.C.A.
5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Law
Service connection may be granted for an injury or disease incurred
in, or aggravated by, active military service. 38 U.S.C.A. 1110
(West 1991); 38 C.F.R. 3.303(a) (1997).
In the field of mental disorders, personality disorders which are
characterized by developmental defects or pathological trends in
the personality structure manifested by a lifelong pattern of
action or behavior, chronic psychoneurosis of long duration or
other psychiatric symptomatology shown to have existed prior to
service with the same manifestations during service, which were the
basis of the service diagnosis, will be accepted as showing
preservice origin. Personality disorders and mental deficiency as
such are not diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. 3.303(c).
The threshold question that must be resolved is whether the
appellant's claim for service connection is well grounded. See 38
U.S.C.A. 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
A well grounded claim is a plausible claim, one that appears to be
meritorious. Id., at 8 1. An assertion of service connection is not
sufficient. The appellant must present evidence in support of his
claim that
would "justify a belief by a fair and impartial individual that the
claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992).
The quality and quantity of evidence necessary to well ground a
claim will depend upon the issue presented by the claim. Grottveit
v. Brown, 5 Vet. App. 91, 92-93 (1993). In Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), the United States Court of Veterans Appeals
(Court) stated that in order for a claim to be well grounded, there
must be competent evidence of (1) a current disability (a medical
diagnosis), (2) incurrence or aggravation of a disease or injury in
service (lay or medical evidence), and (3) a nexus between the in-
service injury or disease and the current disability (medical
evidence).
The Court has held that, where a question is factual in nature,
e.g., whether an incident or injury occurred in service, competent
lay testimony, including the appellant's solitary testimony, may
constitute sufficient evidence to establish a well-grounded claim.
But, if the determinative issue is one of medical etiology or a
medical diagnosis, competent medical evidence must be submitted to
well ground the claim. Grottveit, 5 Vet. App. at 93. A lay person
is not competent to make a medical diagnosis or to relate a medical
disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). However, where the issue does not require
medical expertise, lay evidence may be sufficient. See Layno v.
Brown, 6 Vet. App. 465, 469 (1994). If a claim is not well
grounded, VA has no duty to assist the claimant in any further
development of the claim. Grottveit, 5 Vet. App. at 93.
Factual background
The report of a psychiatric evaluation, dated in March 1970,
reflects the veteran was referred for evaluation by his commanding
officer. The report notes the veteran had been court-martialed
twice previously, and was pending a third court-martial. By
history, the report further notes the veteran was previously
hospitalized twice for observation, and on both occasions his
problems were found to be characterological rather than psychotic.
Mental status evaluation found the veteran was hostile, angry, and
frustrated. He was alert, oriented, and showed no signs of organic
brain
disease or psychosis. To a moderate extent, a disorder of mood was
present, and the veteran's affect was somewhat constricted. The
veteran's memory was intact and his intellectual functioning
appeared to be below normal. A General Technical (GT) score of 60
was noted. The diagnosis was emotional instability (character and
behavior disorder). The examiner found no mental disease or defect
sufficient to warrant disposition through medical channels.
The report of a March 1970 separation examination reflects an
abnormal clinical psychiatric evaluation, and notes a diagnosis of
emotional instability (character and behavior disorder). The
examination report references the March 1970 psychiatric evaluation
discussed above.
A VA hospital "Intake Outline," dated in January 1992, reflects the
veteran reported a 20 year history of auditory hallucinations,
namely voices calling his name. The voices were reported to be
familiar male and female voices which called the veteran's name.
The tentative diagnosis was schizophrenia, paranoid type.
VA outpatient treatment reports, dated from January 1992 to July
1996, reflect that on many occasions the veteran reported hearing
voices calling his name. A VA outpatient treatment report, dated in
February 1992, reflects an assessment of schizophrenia. In June
1996, the veteran reported hearing the voice of his deceased sister
since service.
At a November 1992 VA examination, the veteran reported suicidal
thoughts, depression for the previous 20 years, and hearing a
female voice for most of the previous 20 years. He also reported
drinking two bottles of whiskey per day until four months prior, at
which time he became sober. The report reflects a diagnosis of
alcohol and polysubstance abuse in four month remission, rule out
dysthymia versus major depression.
At a March 1996 personal hearing before the undersigned Board
member, the veteran testified he began to hear voices calling his
name around 1970. The veteran testified he first sought mental
health treatment in the early 1990s. According to the veteran, he
has received continuous treatment since then.
A VA outpatient treatment report, dated in April 1997, reflects a
differential diagnosis of chronic paranoid schizophrenia versus
malingering versus factitious disorder. Another VA outpatient
treatment report, dated in April 1997, reflects the veteran sought
hospitalization. He reported being a "target," that people were
making threats against him, and that he was going to harm himself.
The veteran was oriented times three, and no overt hallucinations
were noted. His mood was depressed and he was noted to be evasive.
The assessment was presumed schizophrenic disorder, rule out
malingering versus factitious disorder as patient has sought
admission twice within two days.
A private hospital report, dated in April 1997, reflects the
veteran reported hearing his deceased sister's voice ever day since
1970. He also reported paranoid, suicidal, and homicidal ideations.
The diagnosis was psychotic disorder, not otherwise specified, rule
out malingering versus rule out factitious disorder.
A federal hospital admission report, dated in April 1997, notes the
veteran reported auditory hallucinations which consisted of hearing
his deceased sister's voice, and that people were "out to get him."
He reported he first began hearing his sister's voice in 1966, and
has heard it frequently ever since. He also reported suicidal and
homicidal ideations. The final diagnoses were schizophrenia,
paranoid type, episodic with inter-episode residual symptoms, and
alcohol dependence, sustained partial remission. The examiner
commented there were no clear events which precipitated the
illness.
A VA hospital report, dated in May 1997, reflects the veteran
reported auditory hallucinations, namely hearing the voice of his
deceased sister crying and saying his name, and that people were
"out to get him." The final diagnoses were schizophrenia, paranoid
type, episodic with interepisode residual symptoms, and alcohol
dependence, sustained partial remission.
A VA outpatient treatment report, dated in May 1997, reflects an
assessment of paranoid schizophrenia.
Analysis
The medical evidence of record indicates the veteran's claim for
service connection for a chronic acquired psychiatric disorder is
not well grounded. The medical evidence clearly establishes the
veteran currently has a psychiatric disorder which has been
diagnosed as schizophrenia, paranoid type. The diagnoses reflected
in the hospital and outpatient treatment reports pertaining to the
veteran's schizophrenia, however, do not draw any causal connection
between the veteran's current disorder and his period of service.
In fact, an April 1997 private hospital report states the disorder
did not appear to be precipitated by any clear-cut events. The
medical evidence, therefore, does not establish a nexus between the
veteran's current schizophrenia and his period of service. Caluza,
7 Vet. App. at 506
The Board has specifically considered the regulatory provisions
pertaining to chronicity and continuity of symptomatology. See 38
C.F.R. 3.303(b) (1997). In this regard, the Board notes that the
veteran did not have schizophrenia, or any other acquired
psychiatric disorder, while in service. The veteran was evaluated
at least three times in service, and on each occasion his problems
were found to be characterological rather than psychotic. The
diagnosis rendered in service was emotional instability (character
and behavior disorder). There were no findings of acquired
psychiatric disability in service. The March 1970 military examiner
found no mental disease or defect. The earliest post-service
diagnosis or treatment of a psychiatric disorder reflected in the
record was in January 1992, over 20 years after service, when a
tentative diagnosis of schizophrenia, paranoid type, was rendered
during VA outpatient treatment. This time frame is consistent with
the veteran's March 1996 personal hearing testimony in which he
stated he first sought mental health treatment in the early 1990s.
Hence, the record does not contain medical evidence of chronicity
or continuity of symptomatology to link the veteran's current
disorder to his period of service. See 38 C.F.R. 3.303(b).
The Board recognizes that, while receiving post-service medical
treatment, the veteran has reported hearing voices as far back as
1966. The veteran's self-reported history, however, is not medical
evidence, and fails to provide a medical link
between his current disorder and his period of service. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992), Caldwell v. Derwinski, 1 Vet.
App. 466 (1991).
In sum, the medical evidence does not establish any link between
the veteran's current schizophrenia and his active service.
Therefore, the third prong of the Caluza test is not satisfied, and
the claim is not well grounded. Caluza, 7 Vet. App. at 506.
Although the Board has disposed of this claim on a ground different
from that of the RO, that is whether the claim is well grounded
rather than whether he is entitled to prevail on the merits, the
appellant has not been prejudiced by the Board's decision. By
assuming that the claim was well grounded, the RO provided the
veteran greater consideration than his claim warranted under the
circumstances. Bernard v. Brown, 4 Vet. App. 3 84, 3 92-94 (1993).
ORDER
Service connection for a chronic acquired psychiatric disability is
denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1997), a decision of the Board of Veterans'Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court-of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans'Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals
014473812 111898 756115
DOCKET NO. 97-27 351 DATE NOV 18, 1998
On appeal from the Department of Veterans Affairs Regional Office
in Oakland, California
THE ISSUE
Entitlement to a compensable evaluation for otitis media with
history of perforated tympanic membrane and left ear hearing loss.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
K. McCormack, Associate Counsel
INTRODUCTION
The veteran had active naval service from February 1941 to
February 1947. This matter comes to the Board of Veterans' Appeals
(Board) from a Department of Veterans Affairs (VA) Oakland Regional
Office (RO) January 1997 rating decision which denied a compensable
evaluation for otitis media with history of perforated tympanic
membrane and left ear hearing loss, and service connection for
right ear hearing loss. In March 1997, the veteran filed a notice
of disagreement with regard to these issues, and the RO issued a
statement of the case in July 1997. In August 1997, the veteran
filed a substantive appeal as to the issue of a compensable
evaluation for otitis media with history of perforated tympanic
membrane and left ear hearing loss. No additional correspondence
with regard to the issue of service connection for right ear
hearing loss was received from either the veteran or his
representative until September 1998, when his representative
included this issue in his written argument on appeal (VA Form
646).
The representative's September 1998 written argument could be
construed as a substantive appeal as to the issue of service
connection for right ear hearing loss. However, it was received
more than one year after the January 1997 rating decision, and more
than 60 days after the July 1997 statement of the case. 38 U.S.C.A.
7105(b)(1),(d)(3) (West 1991); 38 C.F.R. 20.302 (1998).
Nevertheless, in October 1998, the RO certified the issue of
service connection for right ear hearing loss. The Board observes
that due process considerations require that the Board not make a
determination in the first instance as to the timeliness of receipt
of the substantive appeal of the issue of service connection for
right ear hearing loss. Bernard v. Brown, 4 Vet. App. 3 84 (1993);
3 8 C.F.R. 19.34 (1998). Accordingly, the issue of service
connection for right ear hearing loss must be remanded to the RO
for such a determination.
The Board further observes that the veteran's representative, in
his September 1998 written argument, also raised the issue of
service connection for tinnitus. This issue has been neither
procedurally prepared nor certified for appellate review, and is
therefore referred to the RO for appropriate action.
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CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his otitis media with history of
perforated tympanic membrane and left ear hearing loss is of such
severity that it requires him to wear a hearing aid. Thus, lie
believes that a compensable evaluation is warranted for his otitis
media with history of perforated tympanic membrane and left ear
hearing loss.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U. S.C.A. 7104
(West 1991 & Supp. 1998), has reviewed and considered all of the
evidence and material of record in the veteran's claims file. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that
the preponderance of the evidence is against a compensable
evaluation for otitis media with history of perforated tympanic
membrane and left ear hearing loss.
FINDINGS OF FACT
1. The VA audiological evaluation shows that the veteran has no
worse than level 11 hearing in his left ear and level I right ear
hearing.
2. The veteran's otitis media of the left ear is not productive of
suppuration.
CONCLUSION OF LAW
The criteria for a compensable evaluation for otitis media with
history of perforated tympanic membrane and left ear hearing loss
have not been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R.
4.85, Diagnostic Code 6100, 4.87a, Diagnostic Code 6200 (1998).
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REASONS AND BASES FOR FINDINGS AND CONCLUSION
Relevant Law and Regulations
The veteran's claim for a compensable evaluation for otitis media
with history of perforated tympanic membrane and left ear hearing
loss is well grounded, in that it is plausible or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (I 990). In
general, an allegation of an increased disability is sufficient to
establish a well-grounded claim seeking an increased rating.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, the veteran's
contention concerning the severity of his otitis media with history
of perforated tympanic membrane and left ear hearing loss (within
the competence of a lay party to report) is sufficient to conclude
that his claim is well grounded. The Board finds that the facts
relevant to the issue on appeal have been properly developed and
that the statutory obligation of the VA duty to assist the veteran
has been satisfied. 38 U.S.C.A. 5107(a).
Disability evaluations are determined by the application of the VA
Schedule for Rating Disabilities, which is based on average
impairment of earning capacity. 38 U.S.C.A. 1155 (West 1991); 38
C.F.R. Part 4 (1998). Separate diagnostic codes identify the
various disabilities. When evaluating a disability, any reasonable
doubt regarding the degree of disability is resolved in favor of
the claimant. 38 C.F.R. 4.3 (1998). If there is a question as to
which of two evaluations should apply, the higher rating is
assigned if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower rating is
assigned. 38 C.F.R. 4.7 (1998).
Where entitlement to VA compensation has already been established
and an increase in the disability rating is at issue, the present
level of disability is of primary concern. Although a review of the
recorded history of a disability is necessary in order to make an
accurate evaluation, see 3 8 C.F.R. 4.41, 4.42 (1998), the
regulations do not give past medical reports precedence over
current findings. Francisco v, Brown, 7 Vet. App. 55 (1994).
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Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled speech
discrimination tests together with the average hearing threshold
level as measured by pure tone audiometry tests. To evaluate the
degree of disability from defective hearing, the rating schedule
establishes eleven auditory acuity levels designated from level I
for essentially normal acuity, through level XI for profound
deafness. In situations where service connection has been granted
only for defective hearing involving one ear, and the appellant
does not have total deafness in both ears, the hearing acuity of
the non-service connected ear is considered to be normal. In such
situations, a maximum 10 percent evaluation is assignable where
hearing in the service-connected ear is at level X or XI. 38 C.F.R.
4.85, Diagnostic Codes 6100-6110 (1998)
A 10 percent rating is warranted for chronic otitis media,
suppurative, during the continuance of the suppurative process.
This rating is to be combined with ratings for loss of hearing. 38
C.F.R. 4.87a, Code 6200 (1998).
Factual Background
A review of the record reveals that, by October 1948 rating
decision, the RO granted service connection for his left ear
disability (chronic nonsuppurative left otitis media), and assigned
it a noncompensable disability evaluation.
In October 1996, the veteran submitted a VA Form 21-526, and
requested a compensable evaluation for his service-connected left
ear disability.
On December 1996 VA audiological evaluation, auditory thresholds at
1,000, 2,000, 3,000, and 4,000 Hertz were 85, 85, 85, and 90,
respectively, averaging 86 decibels in the left ear. Speech
discrimination was 44 percent correct, bilaterally. The veteran's
audiological history was described as negative for ear pathology.
He was not found to be deaf in his right ear. This equates to level
11 hearing in the left ear and level I hearing in the right ear.
The examiner noted that the veteran had a moderate to profound
bilateral sensorineural hearing loss.
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In March 1997, the veteran submitted a copy of an article from the
January/February 1997 issue of DAV Magazine. In his accompanying
notice of disagreement, the veteran contended that his hearing
disability was more severe than the disability of the veteran
described in the magazine article. However, as the article does not
in any way relate to the current severity of the veteran's service-
connected otitis media with history of perforated tympanic membrane
and left ear hearing loss, the Board views it as essentially
irrelevant to the claim on appeal.
In a statement, received in March 1997, a former shipmate of the
veteran reported that he had visited the veteran on a number of
occasions, and that he had noticed that the veteran had a severe
hearing loss and loss of equilibrium. His former shipmate further
reported that the veteran was using hearing aids.
Outpatient treatment records, dated in February to July 1997, from
the Martinez VA Medical Center, show that the veteran was issued
hearing aides subsequent to his December 1996 audiological
evaluation. When he was seen at the audiology clinic in February
1997, it was noted that the veteran's hearing ability had not
changed significantly since his December 1996 VA audiological
evaluation.
Analysis
The most current medical evidence demonstrates that a compensable
evaluation for the veteran's otitis media with history of
perforated tympanic membrane and left ear hearing loss is not
warranted under Diagnostic Code 6 1 00. The average pure tone
threshold readings along with the speech recognition testing scores
demonstrate that he has no worse than level 11 hearing in the left
ear. In addition, as the veteran's nonservice-connected right ear
was not found to be deaf, this equates to a level I hearing in the
right ear. As such, the schedular criteria for a compensable
evaluation are not met under 3 8 C.F.R. 4.8 5, Diagnostic Code 6 1
00.
The veteran's service-connected otitis media with history of
perforated tympanic membrane and left ear hearing loss does not
warrant a compensable evaluation under Diagnostic Code 6200. The
medical evidence does not demonstrate that his left ear disability
has been productive of any active Suppuration. As such, a
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compensable evaluation is not warranted under 38 C.F.R. 4.87a, Code
6200. See also Lendenmann v. Principi, 3 Vet. App. 345 (1992).
While the Board does not wish to minimize the difficulties the
veteran may be encountering as a result of his service-connected
otitis media with history of perforated tympanic membrane and left
ear hearing loss, his disability is not shown to be of a sufficient
severity as to warrant the assignment of a compensable evaluation.
38 U.S.C.A. 1155, 5107; 38 C.F.R. 4.85, Diagnostic Code 6100,
4.87a, Code 6200.
ORDER
A compensable evaluation for otitis media with history of
perforated tympanic membrane and left ear hearing loss is denied.
REMAND
As indicated above, the RO certified the issue of service
connection for right ear hearing loss even though a substantive
appeal as to this issue was not received until September 1998, more
than one year after the January 1997 rating decision, and more than
60 days after the July 1997 statement of the case. Thus, a remand
is necessary to ensure full compliance with due process
requirements as to a determination concerning the matter of
timeliness of the substantive appeal in the first instance.
Bernard, 4 Vet. App. at 384; 38 C.F.R. 19.34 (1998).
Accordingly, the case is REMANDED for the following development:
The RO should adjudicate initially whether the veteran submitted a
timely substantive appeal as to the issue of entitlement to service
connection for right ear hearing loss. If an adverse determination
is reached and he submits a timely notice of disagreement
therewith, a
- 7 -
statement of the case concerning such determination should be
issued, and he and his representative should again be informed of
the need to submit a timely substantive appeal in order to perfect
an appeal as to such determination.
Following appropriate appellate procedures, the case should be
returned to the Board for further consideration, if appropriate.
J.F. Gough
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1998), a decision of the Board granting less than the
complete benefit, or benefits, sought on appeal is appealable to
the U.S. Court of Veterans Appeals with;.n 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was
filed with the agency of original jurisdiction on or after November
18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, 402,
102 Stat. 4105, 4122 (1988). The date that appears on the face of
this decision constitutes the date of mailing and the copy of this
decision that you have received is your notice of the action taken
on your appeal by the Board. Appellate rights do not attach to
those issues addressed in the remand portion of the Board's
decision, because a remand is in the nature of a preliminary order
and does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. 20.1100(b) (1998).
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